Most federal procurement contracts awarded by government agencies using appropriated funds are subject to review and challenge by unsuccessful offers. These challenges are commonly referred to as “bid protests.” Bid protests may also be lodged to challenge the terms of a proposed solicitation by prospective offers. Bid protests serve to vindicate public interest in the integrity of the procurement process by allowing unsuccessful offerors to challenge contract awards that are, from a policy objective, objectionable. Bid protests at GAO and CoFC also provide an opportunity for contract awardees to intervene in protest challenges and defend their contract awards.
Bid protests may be lodged with the procuring agency itself, the U.S. Government Accountability Office (GAO) or the United States Court of Federal Claims (CoFC), provided that the protest is timely submitted either prior to the closing date of the procurement (for pre-award protests challenging solicitation terms) or shortly after the award notification has been publicized (typically 10 days from when the basis for the protest is known). For procurements that provide for debriefings of unsuccessful offerors, timely requests for debriefings will toll the time for filing protests. As debriefings provide both the unsuccessful offeror and the procurement agency the opportunity to assess the basis for the award decision and potential concerns regarding that decision, it is typically in the interest of all concerned parties to pursue timely and effective debriefings whenever possible. Frequent issues on which protests may be successfully predicated include the following:
- Failure of the procuring agency to follow the evaluation factors/criteria stated in the solicitation
- Procurement agency actions that amount to prejudicially disparate treatment of certain offerors under a solicitation
- Failure of the procurement agency to rationally justify best value determinations or other award criteria
- Procurement agency’s acceptance of proposals that do not meet mandatory procurement requirements or that are not technically acceptable under the terms of the solicitation
- Failure of the procurement agency to conduct a rational or meaningful price or cost realism analysis when such analysis is required by the solicitation
- Procurement agency’s acceptance of offers predicated upon nonschedule or open market items under Federal Supply Schedule procurements
In addition to bid protests, unsuccessful offerors under procurements set aside for small business have the ability to challenge the status of the proposed awardee as a valid small-business concern by submitting a timely small-business size protest for reviewing and ruling by the U.S. Small Business Administration.
The Roeder, Cochran, Phillips, PLLC, team has decades of experience successfully litigating and defending protests before all bid protest tribunals. We also have extensive experience assisting clients in obtaining effective debriefings. That extensive experience enables us to rapidly confer with clients and assess whether viable protests may be submitted and the potential merits or outcomes of such proceedings.
Our principals began their legal careers helping clients resolve contract disputes between government customers and contractors. We have represented contractors of every size as well as the government prior to entering private practice. We have resolved disputes in “metal bending” and manufacturing supply contracts, munitions and electronics procurements, business and professional services, medical devices and supplies, pharmaceuticals, construction, ship repair, office supplies and information technology procurements. We therefore bring unique perspectives to the complete range of business environments as well as the inside “government perspective.” We understand the need for timely, efficient resolution of contract disputes, and we leanly staff your assignments bringing the proper set of capabilities to meet your needs. Simply put, it is unlikely that we have not seen and resolved your particular problem, and we can help you move forward in your business.
Disputes With Departing Employees/Disputes With Business Partners
In today’s hypercompetitive environment, competition for valued employees and the potential for disputes between business owners can often give rise to unique legal issues beyond the loss of human capital, institutional knowledge, and investments in training and client relationships. For example, in knowledge-based industries trade secrets and other confidential information need to be protected in the context of departing employees or the sharing of information between teaming partners. Also maintaining customer relationships are crucial issues in the loss of employees or in disputes between partners.
We have assisted many businesses in preparing for employee/business transitions and enforcing company rights after such changes. We have extensive experience in drafting and enforcing complex business agreements, including teaming agreements, reseller/distributor agreements, nondisclosure agreements as well as noncompete/nonsolicitation agreements that protect the company tailoring these provisions to your individual needs. We have also successfully litigated these issues in courts across the nation. As business owners ourselves, we understand your needs and will work with you to achieve your goals.